Brazil enacts new ambush marketing laws

The amendments made to the 2009 Olympic Act (the “Act”) – Law 12035/09 of 1 October 2009 – took effect. In preparation for the 2016 Olympic and Paralympic Games, taking place in August in Rio de Janeiro, Brazil enacted special legislation to protect symbols and expressions specific to the Rio Olympics and official event sponsors from ambush marketers.

The new law prohibits marketers from engaging in illegal ambush marketing activities, which include:

Ambush marketing by association, i.e. marketing activities that directly or indirectly associate advertisers with the Olympic Games without authorization; and

Ambush marketing by intrusion, i.e. marketing activities that promote advertisers at the official Olympic sites without authorization.

The penalties provided by these new Brazilian restrictions are also of a criminal nature, including fines and jail time, and will be enforced by the Federal Authorities, which – as provided by article 6 of the Act – have the duty to control, oversee and suppress any act of ambush marketing.

Why this matters:

Amendments to the Act are linked to the high level of investment made by official Olympic sponsors – £7 to £75 million – to gain an exclusive category right of association with the Games and to the many companies, which do not have the money or opportunity to become official sponsors, that still want to benefit from the massive audience of the event in an unofficial way.

The new laws underline the need for agencies and brands willing to associate their brands or products with the Rio Olympic Games to urgently consider the legal risks of associating a brand with the Olympics where the brand is not an official sponsor or licensee.

Besides the protection granted to intellectual property rights, the Act seeks to expressly curtail ambush marketing practices by prohibiting the use of expressions and symbols which are ‘sufficiently similar’ to the registered symbols of the Games, to the extent that the sufficiently similar symbol is “able to invoke an undue association of any products and services whatsoever, or even any company, transaction or event with the Rio 2016 Games and Olympic Movement”. Ambush marketing may also be considered as “any marketing strategy in which the participant associates itself, and therefore benefits from, a particular event, without paying the required sponsorship.”

As regards ambush marketing by intrusion, in particular, the definition given will probably prevent non-sponsors from marketing in proximity to the Olympic Games, as the official sites encompass almost all of the city of Rio de Janeiro.

Therefore, agencies should be prudent and cautious when deciding whether to conduct an Olympic-themed or associated campaign, and should avoid any use of the Olympic names and the highly valuable brand assets. It is important not to rely on the assumption that any use will go unnoticed, as the International Olympic Committee (the “IOC”) and official sponsors keep a watchful eye on those seeking to ambush their event.

It is useful to note that the key elements that will be used to assess each particular communication made by agencies and brands attempting to associate with the spirit of the Olympics are: the dominant impression of the communication or advertisement; the context; and the media in which it will be promoted or advertised.

Finally, it is worth mentioning that official sponsors should also be careful, in the sense that they must take care not to go beyond the authorization of the IOC to associate themselves with the Olympic and Paralympic events. The rules concerning the use of the IOC’s trademarks are very restrictive and even those holding a licence as official sponsors may be guilty of ambush marketing. For instance the restrictions go so far as banning all advertising from inside all stadia hosting events and even Federal buildings, such as airports.